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43rd State Blues: Democracy for Idaho
describes itself as a "website of, by and for Democrats and those who
lean towards Democratic, progressive causes." The website offers what
it calls a "team blog" service -- users who register for an account can maintain their own personal blog on the site. One of the
site's users, going by the pseudonym "Tom Paine," published a post in early April 2007 about Melaleuca, Inc. and its CEO Frank VanderSloot.
VanderSloot and Melaleuca objected to the post, which, according to
court documents, discussed rumors about questionable payments made to a
US Senator. On April 6, counsel for Melaleuca sent a cease-and-desist letter
to an individual believed to be the administrator of 43rd State Blues,
claiming that the post was defamatory
and demanding its removal within 24 hours. The next day, an
anonymous individual with the user name "d2" posted the cease-and-desist letter on the website.

In late April, Melaleuca sent a DMCA takedown notice
to the hosting provider for 43rd State Blues, demanding that the hosting provider remove the
April 6 cease-and-desist letter from the website. The hosting provider complied, but
Melaleuca was not content to stop there. It served
administrative subpoenas issued pursuant to section 512(h) of the DMCA
first on the hosting provider, and then on the "reseller" of the
account associated with 43rd State Blues. These subpoenas asked for
documents and information identitying "those persons who posted the
infringing content identified in the
Take-Down Notice [sent to the hosting provider], including but not
limited to those persons using or associated with the screen names 'd2'
or 'Tom Paine' as found at the website 43rdstateblues.com." The
hosting provider informed Melaleuca that it had no information other
than the name of the reseller of the account. When the reseller recieved a subpoena, 43SB.COM, LLC
("43SB"), the actual owner of the site, contacted Melaleuca through counsel and asked that further
communications be directed to his office.

Melaleuca then obtained and served the same DMCA subpoena on 43SB, and 43SB
filed a motion to quash the subpoena on June 25, 2007, arguing that the subpoena did not comply with the requirements of the DMCA and violated the First Amendment. At oral argument, counsel for 43SB narrowed its
objections to two points: (1) that the cease-and-desist letter lacked
the originality necessary for copyright protection; and (2) that
upholding the subpoena would violate Tom Paine's First Amendment right
to engage in anonymous speech because there was not a sufficient
connection between Paine and the posting of the cease-and-desist
letter.

On December 7, the district court adopted the Report and Recommendation
of the magistrate judge (to whom the motion had been referred for
decision). The Report recommended that the court deny the motion to quash with respect to d2, but grant the motion with respect to Tom Paine.

The magistrate judge rejected 43SB's argument that the
cease-and-desist letter was insufficiently original to garner copyright
protection. 43SB had argued that the letter was akin to a set of
instructions or a recipe -- a work "detailing a process for the owner
of the Website to follow in taking down remarks made about Melaleuca
and its CEO." The magistrate judge sidestepped the issue, ruling that
it would "not go into an in-depth analysis of the merits of a copyright
infringement claim in determining whether to quash this subpoena."
Instead, the court concluded that Melaleuca's registration of the
letter with
the Copyright Office was a sufficient indication of ownership of a
valid copyright for the DMCA subpoena to issue.

Reasonable minds could
disagree on whether this C&D was sufficiently original to enjoy
copyright protection, but the magistrate judge's hesitancy to examine the merits of the claim is disquieting, especially in this context where anonymous speech (rather than anonymous piracy) is at issue. Additionally, the court failed to consider fair use. One could argue that posting a C&D like
this is always, or almost always, going to constitute fair use, and so a
DMCA subpoena should not issue based on its posting. The case that comes to mind is Online Policy Group v. Diebold, where the court held that portions of Diebold's email archive were so clearly
subject to the fair use defense that "[n]o reasonable copyright
holder could have believed that [they] were protected by copyright." In that case, fair use rendered a takedown notice defective (and made the sender liable for material misrepresentation). It is not a long stretch to argue that fair use could bar issuance of a subpoena, especially when the party seeking it must submit both a copy of a valid takedown notice and a sworn declaration that "the purpose
for which the subpoena is sought is to obtain the identity of an
alleged infringer." 17 U.S.C. § 512(h)(2)(A), (C).

Then again, fair use is an affirmative defense, and so far courts have held that, in order to obtain a subpoena under sectin 512(h), a copyright holder need only plead a "prima facie case" of copyright infringement -- that is, (a) ownership of a valid copyright; and (b) unauthorized copying. In such an analysis, there is no room for a fair use challenge. The question remains, however, whether this minimal standard does enough to protect the First Amendment rights of anonymous posters when copyright and First Amendment interests clash. The better view is that courts should impose a heightened standard of review before issuing a DMCA subpoena when the allegedly infringing activity is speech, or part of a larger pattern of speech. (Note that this will not be the case in all, or even most, online copyright cases. See, e.g. Sony Music Ent. Inc. v. Does, 326 F. Supp.2d 556, 564 (S.D.N.Y. 2004)).

Luckily, the magistrate judge's opinion was not a complete disaster, and he had a good enough grasp on the factual and technical issues to see through the ruse of naming "Tom Paine" in the subpoena as one of "those persons who posted the infringing content." Melaleuca's beef with Tom Paine was that he made allegedly defamatory statements on his blog. There was no reason to assume, at least not from any evidence put forward by Melaleuca, that Tom Paine was the administrator of 43rd Street Blues, who received and posted the C&D. So, at least in the end, the court stymied Melaleuca's attempt to use the DMCA to unmask a potential defamation defendant, a result that would have made a mockery of the First Amendment protection for anonymous speech recognized and implemented by courts like Cahill, Dendrite, Mobilisa, and Essent, to name a few.

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